Flag Burning in the U.S.

January 9, 2017

It is a practice which few Americans can think about – much less witness before them – without strong emotions in one direction or the other. It is, to some, an appalling betrayal of the sanctity of the nation, while to others it is a sacred act of defiance in itself. It is perhaps the single most controversial form of political expression possible.

It is the burning of the American flag.

The design of the American flag was officially approved in 1777 for the purpose of identifying and protecting United States ships sailing at sea, but generally speaking, it did not become a widely recognized symbol of the US until the Reconstruction era, following the Civil War. This was when the first laws against “desecration” of the flag were passed, as concerns were raised about possible commercial or political misuse of the national symbol. The actual burning of the flag as a form of political protest occurred only sporadically until the Vietnam War, when it was used heavily to speak out against American involvement in that conflict.

The issue came to a major head in 1984, when Gregory Johnson, an American Communist opposed to both Ronald Reagan and Walter Mondale (the Republican and Democrat candidates for President in that year's election race, respectively) burned an American flag outside the Republican National Convention in Texas as sympathetic protesters chanted “America, the red, white and blue, we spit on you.” While the other protesters were clearly within their right to verbally denounce the US, Johnson was arrested, as his burning of the stars and stripes had run afoul of a Texas state law banning desecration of the American flag. Johnson was taken to jail and charged; eventually, he would be convicted, sentenced to a year in prison, and penalized with a $2000 fine.

Challenges mounted against the judgment, however, and eventually, the state of Texas asked the United States Supreme Court to hear the case. Arguments were heard in the landmark case Texas v. Johnson, and finally, in 1989, the high court ruled that flag burning was a constitutionally recognized form of political speech protected under the First Amendment. Since that day, burning and other forms of desecration of the American flag have been legal, the court's decision meaning that a new constitutional amendment making a specific exception to the first entrant of the Bill of Rights would be necessary to ban the act. Congress has tried to do just that since '98, but the road to passing a new constitutional amendment is long and difficult, and efforts thus far have not succeeded.

The court's decision, in and of itself, was correct. As the Justices writing in the majority observed at the time, the burning of the flag is a politically expressive act protected by the constitution – a constitution which does not permit the government to ban expressive conduct simply because it is distasteful or even offensive. Moreover, one is forced to wonder whether a law – or, heaven forbid, a constitutional amendment – restricting political speech would not itself embody the worst offense possible upon a flag that stands for freedom of speech and personal liberty; worse by far than any fire.

Of course, this argument in itself betrays the supreme irony inherent in burning the American flag. In many parts of the world, people are arrested and locked away for less. Protesters who burn the flag here can do so in safety, because their political freedom and right to express their opinions is protected by values and principles held sacred – values given form in the American flag they burn.

The problem here is not the absence of some Orwellian law arbitrarily muzzling political speech. It is a culture that turns patriotism into a partisan political issue. Here, much of the blame lies upon the contemporary left wing, especially as it exists on American college campuses. This political movement goes beyond merely disagreeing with the policies prevalent within the United States at any given time, and imagine that such disagreements must indicate that the nation itself is corrupt or evil. Essentially, it marries the conduct of the US government of a particular day with the US itself, and argues that because what is being done now may be thought to be abhorrent, the entire value and good of the United States is somehow null.

It is this notion that Americans cannot disagree without one side or another falling into wrongheaded immorality that must be abolished – not the freedom to politically protest. No form of political movement or expression (that causes no physical harm) should ever be banned by law, but the nullification of America practiced by the leftist youth and their college enablers must be answered democratically, and shown for the poisonous sentiment that it truly is. If this is done, there will be no need to protect the flag by law. When a majority of Americans understand that the nation is not to be hated for the actions of its transient government, there will simply be no further violence against the flag to stave off.

Bio: Slater Bakhtavar is an attorney, journalist, author and political commentator. He is author of “Iran: The Green Movement”. He has appeared on hundreds of network radio shows, including G Gordon Liddy, Crosstalk America, Les in the Morning, NPR, Jim Bohannon Show and VOA.

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Slater Bakhtavar is an attorney, journalist, author, and political commentator. He is the author of “Iran: The Green Movement”. He has appeared on hundreds of network radio shows, including G. Gordon Liddy, Crosstalk America, Les in the Morning, NPR, Jim Bohannon Show, and VOA.